18-2528 Guzman Alejo v. Garland BIA Kolbe, IJ A098 669 637

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of May, two thousand twenty-one. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 MAURILIO GUZMAN ALEJO, AKA 15 MAURILLIO GUZMAN ALEJO, 16 Petitioner, 17 18 v. 18-2528 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 1 22 Respondent. 23 _____________________________________ 24

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR PETITIONER: Samir Deger-Sen, Esq., Latham & 2 Watkins LLP, Washington, DC. 3 4 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 5 Attorney General; Jessica E. 6 Burns, Senior Litigation Counsel; 7 Rosanne M. Perry, Trial Attorney, 8 Office of Immigration Litigation, 9 Civil Division, United States 10 Department of Justice, Washington, 11 DC.

12 UPON DUE CONSIDERATION of this petition for review of a

13 Board of Immigration Appeals (“BIA”) decision, it is hereby

14 ORDERED, ADJUDGED, AND DECREED that the petition is DENIED.

15 Petitioner Maurilio Guzman Alejo, a native and citizen

16 of Mexico, seeks review of an August 23, 2018, BIA decision

17 affirming a March 2, 2018, decision of an Immigration Judge

18 (“IJ”) denying Guzman Alejo’s application for withholding of

19 removal and protection under the Convention Against Torture

20 (“CAT”). In re Maurilio Guzman Alejo, No. A 098 669 637

21 (B.I.A. Aug. 23, 2018), aff’g No. A 098 669 637 (Immig. Ct.

22 N.Y. City Mar. 2, 2018). We assume the parties’ familiarity

23 with the underlying facts and procedural history.

24 We have reviewed the IJ’s decision as supplemented by

25 the BIA. See Yan Chen v. Gonzales,

(2d

26 Cir. 2005). The applicable standards of review are well

27 established. See

(b)(4)(B); Y.C. v. Holder, 2 1

(2d Cir. 2013) (reviewing legal questions

2 de novo and factual findings for substantial evidence).

3 Whether someone has been persecuted on account of his

4 membership in a particular social group and will likely be

5 tortured in the future are factual findings that we review

6 under the substantial evidence standard. See Paloka v.

7 Holder,

, 199 n.4 (2d Cir. 2014) (nexus); Hui Lin

8 Huang v. Holder,

(2d Cir. 2012) (“A

9 determination of what will occur in the future and the degree

10 of likelihood of the occurrence has been regularly regarded

11 as fact-finding . . . .”).

12 I. Withholding of Removal

13 The agency determined that Guzman Alejo was a member of

14 cognizable social groups and did not address whether his past

15 harm constituted persecution or whether he was likely to be

16 persecuted in the future. Accordingly, the only issue before

17 us is whether the agency erred in concluding that Guzman Alejo

18 had not shown that his group membership was or would be a

19 central reason that he was harmed by narco-traffickers. We

20 conclude that substantial evidence supports the agency’s

21 determination.

3 1 An applicant for withholding of removal “must establish

2 that race, religion, nationality, membership in a particular

3 social group, or political opinion was or will be at least

4 one central reason for persecuting the applicant.” 8 U.S.C.

5 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Matter of C-T-

6 L-,

(B.I.A. 2010) (applying “one

7 central reason” standard to withholding). Under this

8 standard, there may be “more than one motive for

9 mistreatment.” Acharya v. Holder,

(2d Cir.

10 2014) (internal quotation marks omitted). But “the protected

11 ground cannot play a minor role in the alien’s past

12 mistreatment or fears of future mistreatment. That is, it

13 cannot be incidental, tangential, superficial, or subordinate

14 to another reason for harm.” In re J-B-N- and S-M-, 24 I. &

15 N. Dec. 208, 214 (B.I.A. 2007). And the “harm or suffering”

16 must be inflicted “to punish him for possessing a belief or

17 characteristic a persecutor sought to overcome.” Matter of

18 Acosta,

(B.I.A. 1985). Harm

19 occurring because of “general crime conditions” generally is

20 not harm on account of a protected ground. Melgar de Torres

21 v. Reno,

(2d Cir. 1999).

4 1 Guzman Alejo argued that narco-traffickers harmed him

2 “because of his status as a large farm owner and his

3 membership in his land-owning family in Buenavista del Sur,

4 Guerrero, Mexico.” The agency did not err in concluding that

5 Guzman Alejo failed to show that his membership in his social

6 groups was “one central reason” why he was targeted.

7 An applicant must demonstrate either “through direct or

8 circumstantial evidence” that his persecutors targeted him on

9 account of a protected ground. Yueqing Zhang v. Gonzales,

10

(2d Cir. 2005); see also INS v. Elias-

11 Zacarias,

(1992) (“But since the statute

12 makes [the persecutor’s] motive critical, [the petitioner]

13 must provide some evidence of it, direct or circumstantial.”

14 (emphasis in original)). Guzman Alejo did not demonstrate

15 that the narco-traffickers had a motivation other than

16 expanding their criminal enterprise. See Elias-Zacarias, 502

17 U.S. at 483 (emphasizing importance of motive of persecutor);

18 see also Paloka,

(emphasizing distinction

19 between “individuals threatened by state-sponsored or state-

20 condoned criminality on account of their membership in a

21 particular social group and individuals threatened only

5 1 because they live in a country with pervasive criminality”).

2 Guzman Alejo’s country conditions evidence reflects that drug

3 trafficking-related violence is common in Mexico and impacts

4 a large cross-section of the population. And while his

5 evidence showed that he was an ideal target for the narco-

6 traffickers based on his family’s land and status in the

7 community and that there was a pattern of targeting

8 landowners, it also reflected pervasive violence in his home

9 region of Mexico. The pervasiveness of the drug violence

10 supports the agency’s conclusion that the gang targeted

11 Guzman Alejo to expand its power, not to “punish him for

12 possessing a belief or characteristic [it] sought to

13 overcome,” Matter of Acosta,

.

14 II. CAT Protection

15 An applicant for protection under the CAT must “establish

16 that it is more likely than not that he . . . would be tortured

17 if removed to the proposed country of removal.” 8 C.F.R.

18 § 1208.16(c)(2). An IJ considers “all evidence relevant to

19 the possibility of future torture[,]” including evidence of

20 past torture and “[e]vidence that the applicant could

21 relocate to a part of the country of removal where he . . .

6 1 is not likely to be tortured.” Id. § 1208.16(c)(3)(i)–(ii).

2 Substantial evidence supports the agency’s determination

3 that Guzman Alejo did not establish a likelihood of torture.

4 There is evidence of vast drug-related violence in Mexico,

5 but Guzman Alejo’s claim of future torture is undermined by

6 his family’s ability to relocate to avoid harm. See id.

7 § 1208.16(c)(3)(ii); Melgar de Torres,

8 (holding that objective fear is undermined where family

9 members remain unharmed in petitioner’s native country); see

10 also Mu Xiang Lin v. U.S. Dep’t of Justice,

, 160

11 (2d Cir. 2005) (upholding denial of CAT relief where

12 petitioner offered no “particularized evidence” that she

13 would be tortured in her country of removal). Guzman Alejo’s

14 family, including his father who owned their land, relocated

15 within Mexico and there was no evidence presented of harm to

16 any family members following the events of 2006.

17 Accordingly, we find no error in the agency’s conclusion that

18 Guzman Alejo failed to show that he would “more likely than

19 not” be tortured in Mexico.

(c)(2).

20 III. Due Process

21 Finally, Guzman Alejo argues that the IJ deprived him of

7 1 a full hearing by not allowing his expert to testify

2 telephonically. Guzman Alejo has not demonstrated the

3 prejudice required to establish a due process claim

4 violation.

5 “To establish a violation of due process, an alien must

6 show that []he was denied a full and fair opportunity to

7 present h[is] claims or that [he was] otherwise deprived . .

8 . of fundamental fairness.” Burger v. Gonzales,

(2d Cir. 2007) (internal quotation marks omitted).

10 “Parties claiming denial of due process in immigration cases

11 must, in order to prevail, allege some cognizable prejudice

12 fairly attributable to the challenged process.” Garcia-

13 Villeda v. Mukasey,

(2d Cir. 2008) (internal

14 quotation marks omitted). Guzman Alejo stated that the

15 expert would have testified to the contents of his report and

16 his testimony would have amplified the report. Guzman Alejo

17 did not allege that the expert would have provided new or

18 additional information. Accordingly, Guzman Alejo did not

19 show prejudice because the agency considered the expert’s

20 written report.

21 For the foregoing reasons, the petition for review is

8 1 DENIED. All pending motions and applications are DENIED and

2 stays VACATED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court

9